As the holiday season approaches, many attorneys are focused on closing up their year-end collections and enjoying a well-deserved break from a demanding practice. However, the holiday season—with its flurry of parties, departures and administrative tasks—brings its own set of unique professional liability risks.
Certain issues can create risk for attorneys and law firms at year-end. Here are some scenarios that implicate risk management issues at the holidays.
The friendly request for legal advice
It is a situation that every attorney has faced. While sitting at a holiday dinner or attending a cocktail party, another guest observes, "You're a lawyer? Great! I have a question for you."
Although this is a routine occurrence that typically arises in the casual setting of a holiday party, it still could create potential risk for an attorney.
First, there is a risk that attorneys providing advice, even in a casual setting, can be found to have created an implied attorney-client relationship with the person seeking the advice. Most attorneys are not trying to create a relationship when they provide advice informally. The setting and circumstances of the advice are certainly relevant, but courts typically look at whether an attorney-client relationship has been created from the perspective of the potential client. Therefore, it may be seen that an attorney providing casual advice at a party is laying the groundwork for an attorney-client relationship, and if the casual advice is not helpful, a potential malpractice claim.
Even if there is no implied attorney-client relationship, such that there is no risk of a potential claim from a client, conflict of interest issues can arise when an attorney provides casual advice to a family member or acquaintance.
Consider this example. A partygoer meets an attorney at a party and asks the attorney's advice on the partygoer's struggles with his landlord. The attorney advises the partygoer to withhold rent or to file a suit against the landlord.
Upon returning to work after the holidays, the attorney then receives an irate call from another partner, noting that a valued client of the firm—a property manager—is in a dispute with a tenant based on advice provided by the client's law firm to withhold rent. Although there may not be an attorney-client relationship between the attorney and the partygoer, the attorney may have created a serious conflict of interest and a serious client management issue that did not otherwise exist.
Another risk for attorneys at holiday parties is that they will be asked for an opinion on a subject that goes beyond their expertise. Most family members or friends seek casual advice on family law, tax, estate or real estate issues, with an occasional driving infraction thrown in. The family member may ask for advice on how to break a lease or defeat a prenuptial agreement.
An attorney may be creating unnecessary risk by answering questions that are outside the attorney's expertise, even if only providing casual advice. Family, tax, trusts and estates, and real estate issues, while among the most common everyday legal concerns, require highly specialized experts to provide legal advice on those issues. Also, these areas of law are among those in which the most legal malpractice claims are asserted, which should give pause to any attorney considering giving casual advice.
Sometimes, an attorney who is not as familiar with the specific area of law may still feel some pressure to provide an answer to a question. Even couching an answer as a "guess" may still create hard feelings or even a potential claim if the attorney is wrong. A bankruptcy attorney probably should not be advising a party on what to allege in a divorce petition.
At the risk of seeming less merry, attorneys asked for legal advice in casual settings should avoid doing so. To minimize this risk, potential clients can be informed as to the process by which they can become a client of the firm, if they are so interested. The attorney can also say they are unable to answer the question without knowing all the applicable facts and law. Better to be called a Scrooge than to risk a malpractice claim or business conflict.
The too-merry holiday party
Many law firms and practices have an office holiday party to celebrate the successes of the year and reward attorneys and staff for their hard work. However, just like any office party, there are risks attendant to the annual party.
It is not feasible to say that law firms can never serve alcohol at their parties or that they can never allow partners to mingle with associates or staff. But firms must be aware of the potential at a holiday party for an attendee to be over-served, to harass another employee, or to decide to drive a car after drinking. In addition, serving alcohol at a firm event during business hours poses some risks that an attorney or staff member could attempt to provide client services after enjoying the fruits of the party.
Some "lampshade on the head" revelry may be part and parcel of the annual office party. However, risk managers at various offices can take steps to ensure that holiday celebrations do not get out of control. For example, firms can hold parties in the office in the afternoon or invite attendees to bring their spouses, keep an eye on any attendees who appear to have imbibed too much and remind partygoers of the public transportation options for after the party is over.
Many attorneys take time out of the office at the end of the year. It is critical that attorneys take regular vacations to refresh. The practice of law is a stressful profession. In taking time off, however, it is important that attorneys take steps to ensure that their duties to their clients are being met.
Even if an attorney wishes to take time out of the office at the holidays, there may be others—opposing counsel, clients and courts—who will not be following the same schedule. It is critical that the attorney identify and address any potential deadlines before leaving.
Attorneys should not assume that they know when the courts will be open or closed. For example, it may be that a court is technically open the day before or the day after Christmas; an attorney who overlooks those working days in calculating deadlines may submit an untimely filing.
In addition, attorneys should conduct themselves with professionalism during the holidays in working on deadlines with opposing counsel. An attorney should not unnecessarily withhold consent to stipulations on deadlines over the holidays.
Consider your colleagues
For many, the holiday season is a time of goodwill and cheer. But for some, the holidays are a dark time for those suffering with mental illness or substance abuse. The State Bar of Georgia's suicide awareness campaign encourages members to assist those suffering from anxiety and depression and to identify potential warning signs from colleagues.
If you have a concern about a colleague who may need your help, please call the confidential Lawyer Assistance Program hotline at 1-800-327-9631.
As published by American Lawyer Media